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United States District Court District of Minnesota CASE 0:13-cv-03029-JRT-TNL Document Filed 11/29/16 Page 1 of 15 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA LEONARD J. RICHARDS, Civil No. 13-3029 (JRT/JSM) Plaintiff, v. STATE OF MINNESOTA, by Lori R. Swanson, its Attorney General; MIKE HERMERDING, State Program Administrative Manager Principal of the Department of Corrections of the State of Minnesota (“DOC”), in his individual and official capacities; SHEILA PACKWOOD, Food Program Director of the DOC, in her individual and official MEMORANDUM OPINION capacities; NANETTE M. LARSON, Health AND ORDER ON REPORT Services Director of the DOC, in her individual AND RECOMMENDATION OF and official capacities; THOMAS A. ROY, MAGISTRATE JUDGE DATED Commissioner of the DOC, in his individual and JANUARY 14, 2016 official capacities also known as Tom Roy; MARK BRANDT DAYTON, Governor of the State of Minnesota, in his official capacity also known as Mark Dayton; STEPHEN F. SIMON, Secretary of State of the State of Minnesota, in his individual capacity also known as Steve Simon, and BRADLEY K. ANDERSON Election Administrator of the Secretary, in his individual capacity also known as Brad Anderson; and all persons in concern with any of the defendants or on their behalf, Defendants. Leonard J. Richards, No. 149837, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003, pro se. Margaret E. Jacot, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL’S OFFICE, 445 Minnesota Street, Suite 900, St. Paul, MN 55101, for defendants. Plaintiff Leonard J. Richards is an inmate at the Minnesota Correctional Facility in Stillwater, Minnesota (“MCF-Stillwater”). Richards commenced the instant action against 36 CASE 0:13-cv-03029-JRT-TNL Document Filed 11/29/16 Page 2 of 15 the State of Minnesota (“State”), Minnesota Secretary of State Donald Mark Ritchie, Minnesota Election Administrator Brad Anderson, Minnesota Data Practices Compliance Officer Bert Black, Minnesota Commissioner of Correction Thomas A. Roy, Governor of Minnesota Mark Brandt Dayton, and Thomas Edward Nelson. Richards asserted claims under the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), various amendments of the United States Constitution and Minnesota Constitution, and certain Minnesota election statutes. Defendants moved to dismiss Richards’ First Amended Complaint. The Court granted the defendants’ motion in part, dismissing all of Richards’ claims except the ADA claims against the State and Roy. The Court permitted Richards to amend his Complaint to provide additional facts supporting several of the claims dismissed without prejudice. In addition to reasserting claims against the State, Dayton, Roy, Anderson, and Minnesota Secretary of State Stephen Simon,1 Richards’ Second Amended Complaint alleged claims against Department of Corrections’ (“DOC”) employees Mike Hermerding, Sheila Packwood, and Nanette Larson.2 As well as claims premised on the ADA, Rehabilitation Act, and the United States Constitution, Richards brought a new claim pursuant to Section 1557 of the Patient Protection and Affordable Care Act (“Affordable Care Act”). Defendants answered the Second Amended Complaint and filed a partial motion to dismiss, arguing the Court should dismiss all of Richards’ claims except Richards’ ADA 1 Simon replaced Ritchie as the Minnesota Secretary of State in January 2015. 2 Roy, Hermerding, Packwood, and Larson are collectively referred to as “DOC Defendants.” - 2 - CASE 0:13-cv-03029-JRT-TNL Document Filed 11/29/16 Page 3 of 15 claims against the State and DOC Defendants in their official capacities and Rehabilitation Act claims against DOC Defendants in their official capacities. On January 14, 2016, United States Magistrate Judge Janie S. Mayeron issued a Report and Recommendation (“2016 R&R”), recommending the Court grant Defendants’ partial motion to dismiss in part. The Magistrate Judge recommended denying Defendants’ motion with regard to Richards’ Rehabilitation Act claims against the State, and granting in all other respects. Richards objected to the 2016 R&R on various grounds. Because Richards failed to state a claim on which relief may be granted on the claims subject to the partial motion to dismiss, except the Rehabilitation Act claim against the State, the Court will adopt the 2016 R&R, allowing this case to proceed on Richards’ ADA and Rehabilitation Act claims against the State and DOC Defendants in their official capacities. The Court will dismiss all other claims. BACKGROUND3 I. RICHARDS’ CELIAC DISEASE ACCOMODATION A physician diagnosed Richards with celiac disease4 in 2011. (Second Am. Compl. (“SAC”) ¶ 37, Apr. 14, 2015, Docket No. 134.) Richards received an initial biopsy, which 3 The Court recites facts here only to the extent necessary to rule on Richards’ objections. A more thorough factual background is available in the Magistrate Judge’s 2015 Report and Recommendation (“2015 R&R”), (2015 R&R, Jan. 30, 2015, Docket No. 110), this Court’s order affirming the Magistrate Judge’s 2015 R&R, (Mem. Op. & Order Adopting 2015 R&R, Mar. 30, 2015, Docket No. 125), and the Magistrate Judge’s 2016 Report and Recommendation (“2016 R&R”), (2016 R&R, Jan. 15, 2016, Docket No. 237). 4 “Celiac disease is a digestive condition triggered by consumption of the protein gluten, which is primarily found in bread, pasta, cookies, pizza crust and many other foods containing wheat, barley or rye. People with celiac disease who eat foods containing gluten experience an (Footnote continued on next page.) - 3 - CASE 0:13-cv-03029-JRT-TNL Document Filed 11/29/16 Page 4 of 15 showed his small intestine suffered damage due to the disease. (Id. ¶¶ 66, 91.) Despite the results, Richards alleges he never received a follow-up endoscopy, with a biopsy, to determine whether healing occurred in Richards’ small intestine. (Id. ¶¶ 65, 92, 111.) Richards also requested, but did not receive, genetic testing to assess whether celiac disease caused the damage to his small intestine or whether another disease was to blame. (Id. ¶¶ 66-68, 93.) On December 23, 2011, Richards obtained a disability accommodation under the ADA. (Id. ¶ 12.) Richards’ accommodation required the prison to provide a gluten-free and diabetic-appropriate diet to Richards (collectively, “accommodation-appropriate diet”). (Id. ¶¶ 12-14.) Richards contends, however, that the prison repeatedly failed to furnish an accommodation-appropriate diet. (Id. ¶¶ 64, 89, 94, 107; see also Pl.’s Objs. to 2016 R&R (“2016 Objs.”) ¶¶ 3, 5, Aug. 23, 2016, Docket No. 356.) Instead, the DOC used Richards’s celiac disease and diabetes to retaliate against him. (SAC ¶ 34, see also 2016 Objs. ¶¶ 3, 5, 7.) For example, Richards alleges that the Food Service Director at the Minnesota Correctional Facility in Faribault told Richards, “[d]octors have invented the gluten problem,” (SAC ¶ 64(a)), and refused to give him gluten-free sustenance, (id. ¶ 64(c)). Another “frequent ploy” Richards alleges occurred when the prison kitchen neglected to send Richards’ meal and then “avoid[ed] answering the telephone and the in-prison radio” when prison guards called to request Richards’ meal. (Id. ¶ 108.) Further, Richards alleges ____________________________________ (Footnote continued.) immune reaction in their small intestines. Celiac disease affects about 1 in 133 Americans.” (Pl.’s Nov. 28, 2013 Decl., Attach. 1 at 2, Dec. 4, 2013, Docket No. 11.) - 4 - CASE 0:13-cv-03029-JRT-TNL Document Filed 11/29/16 Page 5 of 15 Hermerding denied Richards access to his dietitian – now the DOC Food Program Director – when Hermerding prevented Richards from sending correspondence. (Id. ¶¶ 85-86, 113.) In addition to an accommodation-appropriate diet, dental care is an essential part of the treatment for celiac disease. (Id. ¶¶ 36, 38.) Richards’ original accommodation did not explicitly require provision of gluten-free dental materials. (Id. ¶ 15.) Richards filed a grievance and, approximately eight months later, the DOC supplemented Richards’ disability accommodation to require gluten-free dental materials, including gluten-free toothpaste and dental floss. (Id. ¶¶ 16-17, 19, 29.) As a part of this program, Richards received gluten-free dental materials for use in the prison dental clinic, but the DOC required Richards to purchase gluten-free dental materials outside the prison dental clinic. (Id. ¶¶ 27-28.) In November 2012, the DOC transferred Richards to the Medical Unit at the Minnesota Correctional Facility in Oak Park Heights (“MCF-OPF”) for “alleged needed medical care.” (Id. ¶ 21.) Despite Richards’ accommodation, individuals at MCF-OPF denied Richards gluten-free dental materials. (Id. ¶ 22-23.) Consequently, the staff at MCF-OPF deprived Richards of the ability to perform dental self-care. (Id. ¶ 22.) Twenty-one days later, the DOC transferred Richards to MCF-Stillwater. (Id. ¶ 22, 25.) At MCF-Stillwater, Richards purchased gluten-free dental materials from the prison clinic. (Id. ¶ 28.) But in September 2013 the prison clinic at MCF-Stillwater allegedly stopped making gluten-free dental materials available to Richards.5 (Id. ¶ 31.) In recent months, the prison clinic began supplying Richards with gluten-free dental materials free of 5 Gluten-free dental materials are not available in the prison store, making Richards dependent on the prison clinic to obtain gluten-free dental materials. (SAC ¶ 33.) - 5 - CASE 0:13-cv-03029-JRT-TNL Document Filed 11/29/16 Page 6 of 15 charge. 6 (Id. ¶ 29.) But, since Richards’ diagnosis with celiac disease, the DOC deprived Richards’ “natural teeth and adjoining tissues . of reliable, uninterrupted care,” and, Richards alleges, the lack of access to gluten-free dental materials damaged Richards. (Id. ¶ 40.) II. PROCEDURAL HISTORY Richards initiated this action on October 6, 2013 against state and federal defendants. (Notice of Removal, Ex. A (“Summons and Compl.”), Nov. 5, 2013, Docket No. 1.) The case was removed to federal court, (id.), and Richards filed his First Amended Complaint on April 10, 2014. (First Am. Compl. (“FAC”), Apr. 10, 2014, Docket No. 28.) Defendants filed a motion to dismiss on May 21, 2014.
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